DOJ Seeks Rehearing of Landmark Ruling in Bernstein Encryption Case

As expected, the U.S. Government today sought further review by the 9th Circuit of a 3 judge panel's recent decision holding that the federal government's regulations of encryption is unconstitutional. The Petition, which seeks both rehearing from the panel and rehearing en banc by an 11 judge panel, asserts two basic arguments, neither of which is new to the case.

The government argues that the 9th Circuit panel incorrectly determined that the export restrictions on source code are facially unconstitutional. This argument is based upon an entirely unsupported assertion that source code is only used expressively "on occasion."

"This should come as a big surprise to the millions of people who study, write, read, and develop their ideas using programming languages," noted lead counsel, Cindy Cohn. "This includes most of the inhabitants of Silicon Valley, as well as the mathematics, physics, computer science and other departments of high schools, universities, and businesses worldwide where such expressions are written, read, and reviewed daily. It is also is directly contradicted by evidence included in the record of this case."

The government also argues that the court should have rewritten the regulations to make them Constitutional rather than strike them down. By this, the government is asking the Court to step into the shoes of the agency and rewrite the regulations.

"Obviously this is not a proper role for a court," stated Ms. Cohn. "Indeed had the Court done so the government would have protested the 'judicial activism' of the Court. Writing regulations that meet the constitutional standards for free speech is certainly within the abilities of the Commerce Department."

"In sum, the Petition for Rehearing is not surprising, nor does it raise any new arguments," Cohn concluded. "It instead indicates the intention of the Government to delay justice for Professor Bernstein and the millions of others who are restricted by the encryption regulations for as long as possible."

Background

The Ninth Circuit Court of Appeals ruled on May 6, 1999 that the federal government's restrictions on encryption are unconstitutional, affirming a lower court's ruling that export control over cryptographic "software and related devices and technology are in violation of the First Amendment on the grounds of prior restraint."

The case has been sponsored by EFF since 1995 because of its importance to society, free expression, electronic commerce, and privacy in the digital world.

Encryption, the process of coding and decoding computerized information, is the most critical technological solution to protecting privacy and keeping computer networks secure. Acknowledging this point, the appeals court said "[t]he availability and use of secure encryption may offer an opportunity to reclaim some portion of the privacy we have lost. Government efforts to control encryption thus may well implicate not only the First Amendment rights of cryptographers intent on pushing the boundaries of their science, but also the constitutional rights of each of us as potential recipients of encryption's bounty."